Corporation of London v Eurostar (UK) Ltd

MR JUSTICE HENRIQUES: This is an appeal by way of case stated from a decision of Mr District Judge Gillibrand sitting at Horseferry Road Magistrates' Court on 12th February 2003.

An information was laid against the respondent that on 9th January 2002 at Waterloo International Rail Terminal, the respondent did land a German shepherd dog brought from a place outside Great Britain, as prohibited under Article 4 Rabies (Importation of Dogs, Cats and other Mammals) Order 1974 contrary to Article 16(1) of the said Order and section 73 of the Animal Health Act 1981.

District Judge Gillibrand found the following facts:

The learned judge, in dismissing the summons, posed four questions for the consideration of the High Court:

By way of preliminary point, Mr Griffith Jones QC, who appears for the respondent, takes issue with the District Judge's purported finding of fact at (v), namely that:

There was agreed evidence before the District Judge, such evidence having been published on the Eurostar website in these terms:

Mr Griffith Jones submitted that there was no evidence that any Eurostar employee played any part in unloading the dog. The train was not even a Eurostar train. Mrs Wilson stated that the respondent was unable to exercise control over SNCF, their trains or staff. Where a breach of British law occurred, the only recourse was to report such breach to SNCF. The respondent was unable to discipline or respond to breaches by SNCF.

The respondents, through their staff, were unable to travel on SNCF trains to check passengers or in any way regulate or control the operations of SNCF in Great Britain. In these circumstances the respondent had to rely on SNCF staff to uphold British law. Accordingly, submits Mr Griffith Jones, Eurostar (UK) Ltd were not responsible in law for any act or omission by the staff of SNCF. Eurostar (UK) Ltd does not accept that control of trains pins Eurostar with criminal responsibility for landing the dog in the United Kingdom.

In response, Mr Hick relies upon the website extract and submits that SNCF manifestly delegated their responsibility and that Eurostar (UK) Ltd assumed responsibility. Mr Hick goes on to concede that Eurostar (UK) Ltd could not be found guilty of causing or permitting any criminal act committed by an employee of SNCF because the directing mind and will, at all relevant times, was the mind and will not of Eurostar (UK) Ltd, but of SNCF. That concession may well have been a generous one, having regard to the principles of agency, but it is not necessary, for present purposes, to determine whether Eurostar (UK) Ltd caused or permitted the landing of the dog. Question: was it open to the district judge to convict Eurostar (UK) Ltd as principals with the offence of landing the dog?

It was said by Lord Hoffman in MGFM Asia Ltd v Securities Commission [1995] 2 AC 500 PC that a company's rights and obligations are determined by rules whereby the acts of natural persons are attributed to the company; such rules are normally to be determined by reference to the primary rules of attribution generally contained in the company's constitution and implied by company law, and to the rules of agency. The company will appoint servants and agents whose acts, by a combination of the general principles of agency and the company's primary rules of attribution, count as the acts of the company. Having done so, it will also make itself subject to the general rules by which liability for the acts of others can be attributed to natural persons such as vicarious liability in tort.

It is perfectly plain from the website material that Eurostar agreed with both SNCF and SNCB to act as agents in the United Kingdom in the running of their trains. For the purposes of the Criminal Law, the strict liability obligations of SNCF were attributed to Eurostar (UK) Ltd subject, of course, to taking into account the language of the statute, its content and policy (see Lord Hoffman page 507, letter F). The purpose of the statute was to prevent the importation of animals and, thus, to maintain the United Kingdom free from rabies. Subject to determining that the relevant provision was a strict liability provision, it is manifest from the website extract that Eurostar (UK) Ltd is potentially liable under the relevant legislation. Whilst it would have been preferable for the District Judge to have expressed his findings of fact in terms of the agreed website extract, his finding at (v), expressed as a finding of law, was no more than convenient shorthand for what was never the subject matter of any controversy before him.

It is convenient and necessary at this juncture to consider whether the legislation creates a strict liability offence. Article 2(2) of the order specifies:

The respondent submits that since it cannot be shown that Eurostar (UK) Ltd landed the dog, the question of strict liability does not arise. Nevertheless, Mr Griffith Jones submits that the offence is not one of strict liability and the charge is bound to fail for lack of mens rea. He invites attention to B (a minor) v DPP [2000] 2 AC 428 for a redefinition of the proper approach to statutory interpretation. In that case the issue was whether it was necessary for the prosecution to prove the absence of a genuine belief on the part of the defendant that a child was over the specified age of 14. It was held that mens rea was an essential element of any criminal offence unless Parliament expressly, or by necessary implication, provided to the contrary.

It is manifest from the speeches of Lords Nicholls, Steyn and Hutton that the case did not sound the death knell of strict liability offences. There exists a volume of such offences, usually arising under regulatory legislation applying to particular trades; for example, the sale of food and drink or medicines or the carrying on of businesses where continuous attention to detail is important. In Sweet v Parsley [1970] AC 132, Lord Reid recognised that strict liability is often applied to a class of quasi criminal offences which are not criminal in a real sense but which are prohibited in the public interest.

Mr Griffith Jones makes specific reference to Lord Goddard CJ's dicta in Reynolds v Austin [1951] 2 KB 135:

In the same case, at page 149, Devlin J, as he then was, said:

It was said by Lord Evershed in Lim Chin Aik v The Queen [1963] AC 160 that it is pertinent to inquire whether putting the defendant under strict liability will assist with the enforcement of the regulations. Without embarking upon a voluminous examination of strict liability offences, it suffices to observe that courts must have regard to the object of the legislation, the danger to be guarded against, and the likely efficacy of imposing strict liability. The penalty may also be relevant. At the time of the incident, the penalty was monetary only but, subsequently, section 75 of the Animal Health Act 2002 provides for a custodial sentence.

The existence of a statutory defence is also relevant. Section 73(1) of the Act provides that:

Mr Hick cited Aldersen B's dicta in Attorney General v Lockwood [1842] 9 M&W 378, cited in Sweet v Parsly, that statutes should be construed according to the plain, literal and grammatical meaning of the words in which they are expressed, unless that construction leads to a plain and clear contradiction of the apparent purpose of the Act, or to some palpable and evident absurdity. That test must, of course, be read in the light of B (a minor) v DPP.

Having considered the purpose of the legislation and the importance of ensuring compliance with it, the penalties, the existence of a statutory defence, I have no doubt that the offence under Article 16(1) is an offence of strict liability. The risk of rabies becoming imported into Great Britain is so grave that, in order to prevent it, Parliament has created Article 16(1), an absolute offence of landing animals prohibited under Article 4(1). The respondent is engaged in running a transport business which gives rise to the risk of rabies entering Great Britain. Parliament has deliberately created a strict liability offence to be sure that no prohibited landing takes place. The offence is committed subject to the availability of the statutory defence pursuant to Section 73(1).

I next consider whether the District Judge was correct in law in considering whether the respondent should have been prosecuted as a secondary party who caused or permitted the landing of an animal. The respondent's case is that at all material times, the dog was with and under the control of Mr Servant, its owner. Under Article 2(2) any landing at Waterloo occurred only when the dog was unloaded, or taken out of the train. The offence of landing the dog (if any) occurred at that point. The person who took the dog out of the train was Mr Servant. There was no evidence that any SNCF or Eurostar employee played any part in unloading the dog. Indeed, the District Judge found that Eurostar did everything in its power to prevent the landing at Waterloo.

The respondent was properly convicted as a principal, the appellant submits. Article 2(2) of the 1974 Order was originally drafted as follows:

The appellant submits that the 1990 amendment clearly defined "landing" in the way that made the carriers liable for the landing of prohibited animals transported into Great Britain through the Channel Tunnel system, in that the offence could be committed as soon as the animal crossed the frontier. It is further submitted that the 1993 amendment extended the liability so that the offences could be committed in control zones outside Great Britain.

This amended and extended meaning of "landing" makes it plain that criminal liability is not confined to the party engaged in unloading the animal. The 1990 amendment defined "landing" in a way that made carriers liable for the landing of prohibited animals through the Channel Tunnel system, in that the offence could be committed as soon as the animal crossed the frontier. The 1993 amendment simply extended the above liability so that the offence could be committed in control zones outside Great Britain. This extended meaning of "landing" disposes of Mr Griffith Jones' submission that the sole lander of the dog was its owner.

Mr Hick draws attention to the fact the that the Importation of Animals Order 1977, the Importation of Equine Animals 1979, the Importation of Birds, Poultry and Hatching Eggs Order 1979, the Importation of Animal Products and Poultry Order 1980 and the Importation of Processed Animal Protein Order 1981, were all amended in 1991 to say that landing included bringing the thing into England through the tunnel system as defined in the Channel Tunnel Act 1987. This, submits Mr Hick, provides support that Parliament intended carriers to be liable for offences of landing and that this construction should be applied to the 1974 Order itself. Not to hold carriers liable for landing under the 1974 Order is to infer that Parliament intended the Order to be unique (and uniquely lenient) among enactments of a similar type, amended at the same time. Having regard to the importance of the Order's objective, that, in my judgment, is inconceivable. I find Mr Hick's argument compelling and conclude that the legislation rendered the carriers liable to conviction as principals.

Was the District Judge correct in law in finding that the deemed landing in the control zone in Paris was to be read in addition to, and not to exclude, a subsequent actual landing on the mainland? The respondent submits that he was in error. He ought to have held that the defendant, having been landed in Great Britain within the meaning of Article 2(2) of the 1974 Order (in the control zone in Paris), could not have been subsequently landed in Britain again at Waterloo.

Under Article 2(2), the importation into Great Britain occurred by means of a landing immediately the dog was brought into a control zone in France. It is common ground that it was brought into a control zone in Paris. Thereby, it landed and was deemed to have been imported into Great Britain. Therefore, it is submitted that the dog had already been landed in Great Britain before it reached Waterloo. The offence, if any, was complete in Paris. One journey to Great Britain involves one importation or landing, and Article 2(2) identifies when such importation or landing occurs.

Mr Griffith Jones amusingly postulates that if an animal has already landed in Great Britain without an intervening exportation, the implication would be bizarre as the animal would have to be treated as being landed in Great Britain every time it was unloaded within Great Britain. He goes on to submit that between Paris and London Waterloo, subject to possible agreement between the states of which those instructing him have been unable to trace the information, it may well be that the dog was in a continuous control zone between Paris and London Waterloo.

Article 7 of the Channel Tunnel (International Arrangements) Order 1993 provides:

I am asked by Mr Griffith Jones to proceed on the basis that the case proceeded, at first instance, to consider whether there could be a deemed landing and an actual landing without the dog having necessarily entered a place outside a control zone before the actual landing. The prohibition, submits Mr Griffith Jones, is the landing in Great Britain of an animal brought from a place outside Great Britain. The Channel Tunnel (International Arrangements) Order 1993 defines "control zone" as the part of the territory of the host state determined by mutual agreement, within which the officers of the adjoining state are empowered to affect controls. "Through trains" means trains travelling the fixed link but originating and terminating outside it, as opposed shuttle trains which are trains solely within the fixed link.

There is every reason to suppose that the dog may have remained in a control zone between Paris and London and I propose to reach my decision on that basis.

Mr Hick submits that there was, nevertheless, a landing at London Waterloo. He submits that the purpose of the control zones is to enable adjoining states to implement its frontier controls in a host country. Article 5 of the 1993 Order makes the UK Criminal Law applicable in a control zone in Paris. It is submitted that the purpose of the control zones is to give the United Kingdom law enforcement authorities the power to act abroad, in addition to their ordinary powers on the mainland.

Article 2(2) of the 1974 Order is a deeming provision that in no way detracts from the legislation relating to actual landing in Great Britain. It provides an additional location in which United Kingdom frontier controls may be exercised and does not purport to exclude the operation of the legislation on the mainland itself, nor to limit the generality of Article 4(1). I readily accept that submission. Whilst the dog was deemed to have landed in Great Britain by Article 2(2), it did not, in fact, actually land in Great Britain. I see nothing inherently objectionable in finding that both a deemed landing and an actual landing took place. To find otherwise would be to restrict the operation of the Criminal Law on the mainland.

Statutory defence. Was the district judge correct in law in finding that the statutory defence in section 73(1) of the Animal Health Act was properly available to the respondent? The respondent submits that if otherwise guilty of an offence which is, of course, denied, Eurostar (UK) Ltd had a lawful excuse within Section 73(1) of the Act. In short, it is submitted that Eurostar (UK) Ltd has done everything it reasonably could have done. In Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426, the Divisional Court held that under section 127 of the Highways Act 1959, a defendant had a lawful excuse if he had an honest and reasonable, albeit mistaken, belief in a state of facts which, if true, would have provided an answer to the charge.

Whilst it is conceded that there was a landing at Waterloo which was not a specified point of entry, nevertheless, the proviso to article 4(4) contemplates licences being granted to permit landings at other points of entry. Eurostar had done everything, it is submitted, which sensibly it could have been expected to do to prevent dogs unlawfully being brought into Great Britain on SNCF trains. It was entitled to assume and believe that SNCF or the proper authorities in the Paris control zone would prevent any breach. On the basis of that belief, any dog on a SNCF train, if it were to be landed at Waterloo, would, it is submitted, and could, have been a dog licensed to be landed at Waterloo. Finally, it is said that the absence of any actual knowledge of the facts complained about amounts to a lawful excuse in the circumstances.

The appellant submits that the respondent is unable to show that he either had a lawful authority or an excuse for the landing. As to lawful authority, it is unlawful to bring dogs into Great Britain through Waterloo International Rail Terminal since it is not one of the points of entry stipulated in the 1974 Order (as amended). Therefore, there can be no lawful authority for the landing of a dog at that location.

As to reasonable excuse, it was held in Cambridgeshire and Isle of Ely County Council v Rust, on appeal to the Divisional Court, that in order for the defendant to have a lawful excuse for what he did, he must honestly believe on reasonable grounds that the facts are of a certain order. If they were of that order, his conduct would be lawful. Since the act charged was landing a dog brought from outside Great Britain at Waterloo International Rail Terminal, the respondent would have to believe in a state of facts that, if true, would render such an act lawful.

It is not suggested that the respondent believed that Waterloo International was a lawful point of entry. Further, a belief that SNCF was enforcing British law properly would not render the landing lawful. Whilst proper enforcement could have prevented the landing, it could never have made it lawful. As Devlin J has said in Reynolds v G H Austin & Sons Ltd [1951] 2 KB 135, if the accused does not know that he was doing wrong, it is an excuse the law cannot permit.

The appellant's argument is, in my judgment, untenable. The respondent could not establish either lawful authority or lawful excuse. There was a prohibited landing of this dog at Waterloo station. Waterloo was not an authorised place for the landing of animals from France. The respondent undertook responsibility for the running of the train on which the dog landed. The deemed landing of the dog in Paris was additional to and did not preclude the actual landing of it at Waterloo.

In my judgment, the District Judge was wrong in law to dismiss the summons. I would answer the four questions thus:

MR NORMAN: There is an application for costs on behalf of the Corporation, my Lord. I will have a copy of the costs schedule for your Lordship.

MR JUSTICE HENRIQUES: Is there a copy at hand?

MR NORMAN: Yes. One correction is made to it which my learned friends are aware of (Handed).

MR JUSTICE HENRIQUES: Yes. The corrections?

MR NORMAN: The last hearing that this case had at this court was occasioned by our failure to comply with a regulation about serving our appellant's notice. Therefore, it is not right that we should claim those costs from the other side. Those costs are £1,490 which makes the total application now £16,266.

MR JUSTICE HENRIQUES: Are you having to pay some of the respondent's costs?

MR NORMAN: That has not been determined.

MR JUSTICE HENRIQUES: Is there any issue about this, Mr Griffith Jones?

MR GRIFFITH JONES: So far as the figures themselves are concerned, there is no dispute on the figures. However, there are two points of principle. The first is the one my learned friend has already mentioned. Two points arise out of that. One is that we would respectfully submit that we should have our costs in relation to Newman J.

MR JUSTICE HENRIQUES: The same occurred to me. You will have them. What are they calculated as?

MR GRIFFITH JONES: My Lord, I do not have a figure I am afraid.

MR JUSTICE HENRIQUES: Your figure for that was?

MR NORMAN: £1,490.

MR GRIFFITH JONES: My Lord, so far as that figure, £1,490, is concerned, it is not clear to me whether that includes both solicitors' costs and counsel's fees.

MR NORMAN: Yes, it does.

MR JUSTICE HENRIQUES: An all in figure.

MR GRIFFITH JONES: My Lord, so be it, although there is no breakdown.

MR JUSTICE HENRIQUES: No, it is obviously a reasonable figure. Presumably you would say some similar figure would be appropriate.

MR GRIFFITH JONES: My Lord, indeed.

MR JUSTICE HENRIQUES: If we take another £1,490 off the £16,266, can you do the mathematics for me there?

MR GRIFFITH JONES: Whilst my learned friend is doing the arithmetic, can I mention the other point? On one of the issues that were raised in the statement of case, it was at the hearing that my learned friend conceded this point. There was, obviously, quite a lot of work that went into dealing with that issue and our submission is simply that that should be reflected in some way by a reduction in the total figure by way of costs.

MR JUSTICE HENRIQUES: Yes. Thank you very much. The figure we get to is?

MR NORMAN: £14,766, my Lord.

MR JUSTICE HENRIQUES: Do you want to say anything about the fact that certainly part of the argument was indeed abandoned, namely as to whether or not the respondents could be held liable as a secondary party?

MR NORMAN: Of course, it is trite to say it but we did have to think about it before we planned it.

MR JUSTICE HENRIQUES: Of course. You were the appellant, it was a ground of appeal, it was a ground of appeal not, in effect, advanced, and the respondents were put to some expense in relation to that. If one took a figure of roughly a quarter, that would be fair?

MR NORMAN: Yes, my Lord.

MR JUSTICE HENRIQUES: So if I say less 25 per cent that will give you a further sum.

MR GRIFFITH JONES: My Lord, whilst my learned friend does that, it is just a matter of arithmetic and the ultimate sum would be agreed, no doubt, on that basis, my Lord, I rise to my feet to deal with the question of permission to appeal. As we understand it, any appeal from your Lordship's order would go directly to their Lordships' house and it would be necessary, if an appeal is to proceed, for your Lordship, firstly, to certify that the case raised a point of law of general public importance. That is a condition precedent to any appeal. In addition, your Lordship, we would be inviting you to say that if we get to that point, that this is a matter that should be considered by the House of Lords.

My Lord, dealing with the first point, the certificate. This is the first time your Lordship is aware that these regulations have been considered. They do raise, in our submission, difficult questions. The question of mens rea is but one of them. Whether you can, indeed, as your Lordship has ruled, have an actual landing of a dog already deemed to have landed in Great Britain and so on and so forth, I do not propose to rehearse the arguments again.

MR JUSTICE HENRIQUES: Have you a draft of the point you would like me to certify?

MR GRIFFITH JONES: My Lord, no. We can put that together.

MR JUSTICE HENRIQUES: That, I think, is the condition precedent. I will obviously hear you but my preliminary view is that the practical consequences of the ruling, the potential consequences to Eurostar, do render this a matter of general public importance. The way in which you wrap it up and the way in which you formulate the question may take you a little time. I am minded to certify but not to grant permission to appeal. You would, of course, have to go to the committee at their Lordships' house in that respect. That would be of no surprise to you. Do the appellants wish to say anything about certifying?

MR NORMAN: No. The final figure for costs, and I am grateful to my instructing solicitors for this, is £11,074.50.

MR JUSTICE HENRIQUES: Very well. The respondent will pay the appellants costs in that sum the certified. Perhaps you would discuss it with the appellants and agree it between you. If you are able to agree it between you, you can submit it to me in writing, in which case, provided I do give it, there will be no necessity for either of you to attend.

MR GRIFFITH JONES: My Lord, I am very grateful. Can I just, for clarification, indicate that, subject to anything your Lordship says, what we would intend to seek to embrace in the articulation of any point or points are the three issues: one, whether you can have a second actual landing after a deemed landing; two, whether or not a carrier, as you have described it, is targeted by the regulations; and thirdly, the question of mens rea.

MR JUSTICE HENRIQUES: Yes, certainly. It is just a question of neatly wrapping that up in the certified question. I am very grateful to all counsel for their considerable assistance in a case which was not altogether straightforward.

MR GRIFFITH JONES: My Lord, I am grateful to your Lordship for giving judgment so promptly even if it did go against us.

MR JUSTICE HENRIQUES: Ordinarily, the certified point would be part of the order. It would probably help you if I said could we have it done this week. The sooner it is done --

MR GRIFFITH JONES: My Lord, I am minded to get it done today.

MR JUSTICE HENRIQUES: I understand that. It is better, otherwise there is an order hanging about.

MR GRIFFITH JONES: I am grateful, my Lord.